Environmental regulations originally designed for “smokestack” industries Are Being Applied To Agriculture

The animal agriculture community should not only brace for more stringent, far-reaching regulations, but be proactive in shaping the direction those regulations may take

Lora Berg | Jan 06, 2011

The animal agriculture community should not only brace for more stringent, far-reaching regulations, but be proactive in shaping the direction those regulations may take.

Speaking at the recent Food, Agriculture and Biofuels Conference in Minneapolis, MN, several prominent attorneys familiar with agricultural and environmental law commented on the notable shortage of environmental emissions research pertaining to agriculture.

“The traditional tools of a regulatory agency don’t fit very well with on-the-farm activities,” explains Tim Jones, senior counsel, Tyson Foods, Springdale, AR. “I think the Environmental Protection Agency (EPA) and state agencies have struggled with how you regulate cows in a field. Or, how do you regulate dust from a dirt road vs. dust escaping from a planting activity, for example?” he asks.

Legal experts agree that during the last decade, agriculture has been subjected to more environmental regulations that have been enforced in unexpected, and perhaps unintended, ways. As some industries reach the perceived limits of pollution-control regulation that can be imposed, the federal government looks for new targets, Jones says.

“We are watching as our (agricultural) industry comes into a maturity in parity with more traditional industries. It is important to understand that all these (environmental) laws that apply to farms are in a state of confusion,” he says.

In the midst of the confusion, nearly all species groups in animal agriculture are dealing with enforcement and litigation related to environmental issues.

Regulation via litigation

A trend toward regulation through litigation seems to be emerging. Livestock and poultry operations have been the targets of several recent environmental court cases despite what the companies say are their efforts to follow existing environmental rules.

For example, seven poultry companies are awaiting a judge’s final decision after a five-month trial in Oklahoma. The state’s attorney general initiated the lawsuit alleging that the companies’ contract growers had contributed to non-point source pollution across the million-acre Illinois River watershed located in parts of Arkansas and Oklahoma. The state claimed that runoff from land where poultry litter was applied had moved through a number of rivers and tributaries, which ultimately resulted in overgrowth of algae in Lake Tenkiller, a man-made lake in Oklahoma.

“The theory for the state of Oklahoma was that the (poultry) companies, through the contract growers, overused the litter. Probably the most important trend to emerge (from this case) was the concept of regulation through litigation,” explains Mark Quayle, vice president of law for Cargill Meat Solutions, Wichita, KS. At trial, every grower who testified had a certified Nutrient Management Plan on file with their local Natural Resources Conservation Service (NRCS) office, and testified that they followed the guidelines laid out within those plans.

“Here we had a state attorney general who didn’t like what the legislature or the regulators had to say on the subject, so he decided to bring a lawsuit to enforce his view of what the regulations should be. He took the stance of holding people personally responsible for what he considered to be bad policy, in spite of the fact that the growers were following the existing rules for applying the poultry litter.”

Lawyers for agricultural industries sense that the Oklahoma case could be one of a number of bellwether test cases that shed light on what may lie ahead for livestock producers. “If we don’t legislate or regulate, we litigate. That is what we are seeing in these regulatory areas. Or we see a patchwork of county health or zoning ordinances stepping up to fill a perceived void,” says Kimberly Thorstad, Cargill environmental lawyer, Wayzata, MN.

Thorstad sees unique challenges in the application of new and existing environmental regulations. “We’ve got a lot of regulations that were written primarily for smokestack-type, heavy industries that we are now trying to apply to a farm,” she says.

In addition to local, county and state regulations, environmental regulations come from three main areas relating to the Clean Water Act, Clean Air Act, and a combination of the Emergency Planning and Community Right to Know Act (EPCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), she says.

Clean Water Act

Thorstad says some thought was given to animal agriculture when the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), was written. The intent was to prevent point and non-point source pollution.

“Right in the definition of a point source, the act writes in concentrated animal feeding operations, but it does not include agricultural storm water discharges and return flows from irrigated agriculture,” she explains.

According to EPA, the 1972 amendments to the CWA provide the statutory basis for the National Pollutant Discharge Elimination System (NPDES) permit program. EPA has the authority to set effluent limits on an industry-wide basis. Anyone who wants to discharge pollutants is required to first obtain an NPDES permit or the discharge will be considered illegal.

There have been many lawsuits and modifications to the CWA over the years, Thorstad says. “We will see new regulations in 2011, and final regulations in 2012, so the CWA for animal agriculture is a complete moving target. The biggest issue is EPA’s original intent to not only regulate things that discharged from a point source, and which includes the definition of concentrated animal feeding operations (CAFOs), but also wanting to regulate things that propose to discharge.”

Clean Air Act

The Clean Air Act (CAA) and its amendments are designed to protect and enhance the nation’s air quality and resources. CAA consists of six sections, known as “titles,” that direct EPA to establish national air quality standards and provide for implementation and enforcement of the standards.

“Now we’re looking at regulations that were definitely written for typical smokestack and heavy-type industries, with no contemplation when it was written to apply it to animal agriculture; but yet, that is the direction EPA has clearly wanted to head with the CAA,” Thorstad states.

The CAA typically regulates industrial emissions at a point source, such as emissions from a smokestack or chimney. “How do you apply that to a farm, a lagoon, or a field, when the CAA doesn’t apply to the fugitive emissions, just to a particular point source?” she asks. And yet, EPA has cited farms under CAA, bringing enforcement action against Premium Standard Farms in 2001 and Buckeye Eggs in 2004, she points out.

Part of agriculture’s response to enforcement under the CAA was the request for science-based standards for regulating the agricultural industry.

EPCRA and CERCLA

Thorstad notes that the release reporting standards of EPCRA and CERCLA specify that communities have the right to know what industries are within their community, including the appropriate response should an accident occur within that industry. Animal agriculture was granted an administrative exemption from reporting air emissions that normally occur from raising farm animals under CERCLA.

Passage of a final rule in 2008 provides a legal exemption for most livestock operations from EPCRA, with the exception of large CAFOs.

EPCRA and CERCLA address the reporting of emissions of certain gases, such as ammonia and hydrogen sulfide, which are emitted from livestock farms. “For example, with ammonia, should you exceed more than 100 lbs./day (emissions level), you are supposed to be following a continuous-emissions reporting obligation. How does a farm determine whether or not they are emitting 100 lbs./day?” Thorstad asks.

National Air Emissions Study

Emission factors have been used to determine penalties against livestock facilities despite the fact they may be based on old data, or data that doesn’t even apply to agriculture, explains Al Heber, Purdue University professor of agricultural and biological engineering. “Barns just aren’t designed for monitoring or controlling air emissions. We don’t have a stack at the farm. It is a biological environment, so it is always changing,” he says.

In order to help the agricultural industry establish science-based emissions data, Heber has been coordinating a National Air Emissions Monitoring Study (NAEMS) since 2007. Teams from eight universities have measured air emissions from 38 dairy, poultry and swine barns; nine dairy and swine manure storage facilities; and one dairy corral on 20 farm sites in nine states.

Data from the EPA-approved study will help estimate the emissions from individual livestock operations using standardized methods, while comparing them with government regulatory thresholds. The data will also help EPA formulate a strategy for agriculture that will outline steps for reducing farm air pollution. Final results are expected to be released in late 2010.

Legal experts agree that livestock producers must be proactive to ensure sound research is used when new environmental rules are developed and enforced.

“The regulations are coming, and I think the industry must be prepared to participate in the regulation-writing process or risk having those regulations crafted without their participation,” says Kimberly Thorstad, Cargill environmental lawyer, Wayzata, MN.

Tim Jones, senior counsel, Tyson Foods, Springdale, AR, also stresses the importance of having public notice and time for all involved to comment on proposed rule changes.

“These changes to rules shouldn’t be done in private or in back-door settlements and meetings with environmental groups where the (livestock) industry has no seat at the table. If you are going to regulate an industry and change all of the rules, at least let the people who are going to be regulated sit at the table and have a meaningful dialogue with the regulators,” he says.